News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Restrepo nomination update, plus some senior-status news

Here’s an update on the pending Third Circuit nomination of Judge Luis Felipe Restrepo to fill Judge Scirica’s seat, which I posted about before here and here.

The nomination is still before the Senate Judiciary Committee. In a procedural move, the original nomination was returned in mid-December when the Senate adjourned, so he was renominated in early January.

The liberal advocacy group People for the American Way singled out Judge Restrepo’s nomination as a bipartisan success-story:

Good-faith consultations can lead to highly favorable results, as we saw at the end of 2014 with a Pennsylvania vacancy on the Third Circuit. After fruitful conversations between the White House and Senators Bob Casey (D) and Pat Toomey (R), this fall’s nomination of Luis Restrepo for that seat was immediately met with the strong endorsement of both senators.

Finally, the most informative update on the Restrepo nomination is this Legal Intelligencer article last week by Saranac Hale Spencer, which reports:

President Obama nominated Restrepo to the appeals court last November, just over a year after the judge had taken the bench in the Eastern District of Pennsylvania.

That nomination came in the first batch from the White House since the election that flipped the Senate leadership in favor of the Republicans.

U.S. Sen. Chuck Grassley, R-Iowa, has since taken over as chair of the Senate Judiciary Committee and has indicated that he plans to maintain the same pace for moving consensus judicial nominees along to the full Senate for confirmation.

When U.S. Sen. Patrick Leahy, D-Vt., was chair of the committee, he held hearings roughly every two weeks, said Glenn Sugameli, who tracks judicial vacancies for the Defenders of Wildlife in Washington, D.C.

So far, the committee has had one hearing for four judicial nominees—three for the Southern District of Texas and one for the District of Utah.

Those were the nominees next in line for a hearing and, if the same practice holds, Restrepo should be in the next batch of nominees to go in front of the committee, Sugameli said.

There would be two district court nominees and another circuit court nominee in that group, so, it’s conceivable that Restrepo could be held back since circuit nominees are typically under greater scrutiny and the committee will sometimes split them up, Sugameli said. However, he said, neither Restrepo nor the nominee to the Federal Circuit are controversial.

Restrepo had the support of both of Pennsylvania’s senators—Robert Casey, a Democrat, and Pat Toomey, a Republican—when he was nominated to the district court in late 2012 and both senators have, again, given him their support for his nomination to the Third Circuit.

Unless he is confirmed by the full Senate before July, there will be two vacancies on the Third Circuit, which is relatively rare, Sugameli said.

The Seventh Circuit, in Illinois, has a seat that has been open since 2010 and another one that is slated to open when a judge takes senior status in February and the Fifth Circuit, in Texas, has two empty seats with no nominees.

“Texas and Pennsylvania are uniquely in the situation of having justice delayed being justice denied,” Sugameli said, referring to the state of the federal judiciary in those states as a whole, including district court vacancies, and the length of time the seats have been open.

In addition to discussing Restrepo’s nomination, Spencer’s article also has some great senior-status tidbits for CA3 nerds. She reports that Chief Judge McKee is the only active CA3 judge eligible to go senior, and “doesn’t plan to do that any time soon, he said.” She also reports that Judge Rendell plans to keep an 80% caseload, participating in 4 of the 5 or 6 sittings per year.